The Texas Legislature in 2003 – pumped full of special-interest money and controlled by the insurance and business lobbies – passed laws limiting the damages that victims of medical malpractice can recover from negligent health care providers. Unfortunately, they took no steps to try to ensure less negligence or better healthcare.

Fulton County Superior Court Judge Marvin Arrington ruled recently that Georgia’s $350,000 cap on noneconomic damages in medical malpractice suits is unconstitutional, finding that it gives special protections to the medical profession.

“The statute effectively puts substantial limitations on the rights of the poor and middle class to recovery while leaving the right to virtually unlimited recoveries unimpeded for the wealthy,” Arrington said. “The disabled manager of a hedge fund, a corporate CEO, an entertainer or such other person whose income is in the tens of millions of dollars has a claim under Georgia law that would dwarf the amount awarded in any case for pain and suffering.”

The judge made this ruling in a medical negligence case which has yet to go to trial, so the impact of his decision is unclear at this point. The plaintiffs will have to be successful and the defendant will have to appeal (and lose) in order to create precedent; otherwise, it’s just a point to argue in other cases.

Apparently, Judge Arrington has made some controversial rulings in the past and has been reversed by the Georgia Supreme Court on some of them. Nonetheless, I applaud his courage for speaking out against the injustice he sees first-hand in his courtroom.

The cap on noneconomic damages in Texas, by the way, is $250,000. And don’t give me that crap about “stacking” two or three limits (for a $500,000 or $750,000 cap). Those scenarios were pitched by the insurance lobby when they rammed tort reform through the pliant Texas Legislature in 2003 but they have no basis in reality. You and your family are worth $250,000 if you get malpracticed on in Texas these days.

A Miami-Dade jury awarded a doctor and his family almost $24.2 million after finding that his rare type of cancer was caused by exposure to brake pads made with asbestos. The defendant, Honeywell, previously bought the company, Bendix, that manufactured the brake pads.

What strikes me about this is the arrogance of the Honeywell spokesman, who said the company is ”confident we will ultimately prevail on appeal,” and that “there is no supportable evidence that Mr. Guilder’s disease was caused by exposure to Bendix products.” Uh, clearly there was some evidence. But beyond that is the pure chutzpah of corporate interests these days. “Oh, we’ll win on appeal.” Most maddening is that they often do.

A group of 11 plaintiffs, including the family of ex Dallas Cowboys player Ron Springs, filed suit recently in U.S. District Court in Marshall to challenge the constitutionality of the state’s medical malpractice caps.

The Houston Chronicle has a story here. The article suggests that the non-economic cap of $250,000 is per defendant, which is not the case. The $250,000 cap is per claimant(including all derivative plaintiffs such as spouses and children of the injured patient), no matter how many doctors or health care providers are sued. There is – in theory – the potential to stack two limits for a $500,000 cap, but I have yet to see a scenario where that would apply…nor have I heard of any across the state. And in some lobbyist’s fantasy world, there is a magical place where an injured patient could – just maybe – stack three limits for a $750,000 recovery. It’ll never happen, but that was part of the snake oil the insurance lobbyists sold elected officials and voters when tort reform passed in 2003.

My hat is off to the good judges on the Oklahoma Court of Civil Appeals.

OKLAHOMA CITY — For at least the second time in slightly more than a year, a state appeals court has told lawsuit reform proponents that they got it wrong. The Oklahoma Court of Civil Appeals has struck down a lawsuit reform statute, saying it treats medical malpractice plaintiffs differently from others who file lawsuits. The decision comes in the wake of a 2006 Oklahoma Supreme Court ruling that tossed another measure. The justices said it put medical negligence cases in a separate class from all other negligence claims and created a monetary barrier to the courts by requiring an expert witness to attest to a case’s merits. The most recent decision comes just weeks before lawmakers return to the Capitol, where a renewed battle over lawsuit reform is expected. Last year, Gov. Brad Henry vetoed a controversial lawsuit reform measure, Senate Bill 507, saying several provisions were unconstitutional, unduly restricted access to the courts, and didn’t do enough to curb frivolous lawsuits.

The Court of Civil Appeals decision issued Thursday said Lisa K. Jones could pursue her case in Oklahoma County for the alleged wrongful death of her husband, Michael W. Jones, who died after surgery at an Oklahoma City hospital. The trial court had tossed Jones’ case after she failed to inform defendants of the suit within 180 days. The appeals court said a tort reform package passed in 2003 that required such notification treated medical malpractice plaintiffs differently. The opinion said other plaintiffs had the ability to show the court why notification was not made within 180 days but that medical negligence plaintiffs had no such opportunity. The law “holds medical negligence plaintiffs to different and stricter standards than any other plaintiffs,” the opinion states.

Because of a mislabeled tissue sample that led to a misdiagnosis, DarrieEason of Long Island, New York had both of her breasts removed to save her from a cancer that she never had.

Thanks to insurance industry “tort deform” that swept through Texas in 2003, non-economic damages in a medical malpractice suit like Ms. Eason’s would be capped at $250,000. That’s right: All the pain and suffering, all the disfigurement, all the impairment, all the damage to her marriage, everything, is worth $250,000 tops, thanks to the 2003 Texas Legislature.

Back in 2003, when the Texas Legislature bent over for the insurance lobby and capped damages on suits brought by victims of medical negligence, the justification for selling off our rights was typically some variant of a “crisis” facing doctors…too many “frivolous suits,” too many “runaway juries,” too high insurance premiums, too many doctors fleeing the state, etc., etc.

One of the solutions proposed by consumer groups back then was, sensibly, insurancereform. That is, the Legislature should take steps to rein in the insurers, or subsidize premiums for doctors in high-risk specialties or underserved areas, etc. Makes sense. But the insurers and the aligned big money interests wanted no part of that…don’t mess with the invisible hand of the free market, they said, despite the fact that they were charging more for less coverage in order to make up for bad business decisions made along the way (losses in the stock market, poor management, and so forth). So now we have Draconian damage caps and other hurdles affecting consumers but nothing to reform or stabilize the insurance market. Nada. Zip.

Apparently the same “crisis” was hyped in Maryland several years ago, when that state’s legislature contemplated ways to save their doctors. The state implemented a subsidy paid to the insurers to help the docs manage the higher premiums, the same proposal that went over like a lead balloon here in Texas.

The Washington Post reports that Gov. Martin O’Malley (D) now has concerns that his predecessor, Gov. Robert L. Ehrlich, Jr. (R), might have exaggerated the economic hardship facing doctors when he called the General Assembly into emergency session in 2004 to fix what he called a malpractice “crisis.” In the midst of a downward economic cycle for the insurers, a “crisis” was fabricated in order to ram “reform” through the statehouse.

Sounds oddly familiar. Unfortunately for Texans, it won’t be so easy to repair the damage done to our rights. Getting legislators on board to repeal subsidies to insurance companies is a no-brainer; getting them on board to restore patients’ rights at the courthouse is another matter entirely.